Nicecliff Pty Ltd v Maroochy Shire Council and State of Qld

[2006] QPEC 18

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Nicecliff Pty Ltd v Maroochy Shire Council & State of QLD [2006] QPEC 018

PARTIES:

NICECLIFF PTY LTD

(appellant)

v  

MAROOCHY SHIRE COUNCIL

(respondent)

THE STATE OF QUEENSLAND

(Co-respondent)

FILE NO/S:

 296/05

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

DELIVERED ON:

10^th March 2006

DELIVERED AT:

Maroochydore

HEARING DATE:

7^th - 8^th March 2006

JUDGE:

K S Dodds DCJ

ORDER:

The Appeal is upheld.  The Application is approved subject to conditions. 

Application adjourned to a date to be fixed for parties to attend to appropriate conditions.

CATCHWORDS:

ENVIRONMENT AND PLANNING – refusal of development application for commercial buildings, parking, clear sightlines for vehicles exiting site, loss of on street parking

SOLICITORS:

P & E Law for the appellant

G.N. Phillips Legal Services for the respondent

Crown Law for the co-respondent  

COUNSEL:

Mr Ure for the appellant

Mr Hughes SC for the respondent

Mr Cochrane for the co-respondent

1. This is an appeal against the respondent’s refusal of a development application on land abutting Main Street in the village of Montville.

1. The application sought the respondent’s approval for three commercial buildings:

1.  A new pottery centre and gallery (arts and craft centre) of 85 m2 gross floor area (GFA) at ground floor level with two accommodation units each of a GFA of 36 m2 at first floor level;

2.  Two shops, one of 46 m2 gross floor area on the ground floor and the other of 41 m2 GFA on the first floor;

3. A gallery of 83 m2 GFA   

Buildings 1 and 2 were to be located at the front of the site.  Building 3 was to be located at the rear of the site. 

Main Street Montville is a state controlled road.  The Department of Main Roads was a concurrence agency for the application.    

1. The onus is on the appellant to establish that the appeal be upheld.  Section 4.1.4.50 (1) Integrated Planning Act 1997 (IPA). 

The Site

1. The site presently comprises two lots, lot 1 on RP 28037 and lot 440 CG 2105, otherwise described as 161 and 163-167 Main Street, Montville having a total area of 12995 m2.  Approval of the application will include amalgamation of the lots.  There is an existing development on lot 1, ‘Poet’s Café’ in its southern corner adjacent to Main Street and an old disused house and garage to the rear of the lot.  The house and garage are to be removed as a consequence of the proposed development.

Relevant history of development of the site

1. In April 1996 an application was made to the respondent which resulted in approval of development of Poets Café on lot 1.  A condition of that approval required a contribution of money in lieu of provision of 9 on site car parking spaces; an amount of $72,000.  This was paid.

1. The present application calls up the respondents Parking Code, part of its Planning Scheme, Maroochy Plan 2000.  One way of satisfying its parking requirements is by the provision of car parking spaces on site.  Performance criteria under the Code require there be provision, inter alia, of sufficient car parks and service vehicle loading bays to accommodate the amount and type of vehicle traffic expected to be generated by the use.  Acceptable measures to satisfy the performance criteria include:

“A1.1.1 Except as provided for in A1.2 below, the minimum number of vehicle parking spaces provided on the site is not less than the number prescribed in Schedule 1 to Code 2.5 (with the required number being the nearest whole number where the calculated number is not a whole number).

OR

A1.1.2 For any non-residential use (other than a Convenience Restaurant, Post Office or Shopping complex) in a town Centre or Village Centre Precinct, the minimum number of car parking spaces on the site is not less than one space per 20m2 of gross floor area (with the required number being the nearest whole number where the calculated number is not a whole number), with on-site queuing areas and service vehicle provision meeting the minimum requirements for non-residential uses elsewhere.”

1. In its final form, the application made provision for 13 onsite car parking spaces, together with one parking space each for a small rigid service vehicle and for a medium rigid service vehicle.  I consider this is adequate provision of on site parking pursuant to the Code.

1. Proposed driveway access to be constructed for the development is located at the northern extremity of the site’s frontage to Main Street and is on the inside of a bend.  A driver exiting the site, while having unlimited visibility to the right or north would have visibility to the left or south restricted by any motor vehicles parked immediately to the south of the access.  The Department of Main Roads as a concurrence agency in June 2004, specified that such a driver was to have clear visibility of approaching traffic, 80 metres in both directions for the prevailing 50 kilometre an hour speed environment.  This contributed to a view that 9 on street car parking spaces (the driveway access and 8 more to the south) would be lost.  By 9 August 2005, the Department had advised the appellant’s consultant traffic engineer (Mr Pekol) that the removal of 3 car parking spaces south of the proposed access was “probably appropriate for a property access situated in the main commercial area of Montville”. 

1. In the meantime, following discussions with the respondent, the applicant by 1 March 2005 had signed a voluntary infrastructure agreement to make a contribution of $88,012.40 in lieu of 9 lost on street car parking spaces towards future provision by the respondent of off street parking in Montville. 

1. In April 2005, the respondent’s planning staff recommended the application be approved with conditions. The respondent was to execute the infrastructure agreement executed by the appellant.  Notwithstanding, on 30 April 2005 the respondent resolved to defer the planning officer’s report in order for the applicant to explore alternative options which would not result in loss of car parking within the vicinity and not unnecessarily impact on the escarpment by the proposed new commercial use.  Subsequently at a meeting of the respondent on 10 August 2005, the application was refused. 

Reasons for Refusal

1. The respondent’s reasons for refusal were:

1. “The development proposes building works within 5 metres from the edge of the escarpment and is inconsistent with section 7 (Visual Amenity) of the Strategic Plan as it does not satisfy Objective 7.4.5 (To minimise Visual Scarring of Significant Natural Elements).

2. The development results in the loss of 9 on street parking spaces and is inconsistent with Section 13 (Transport) of the Strategic Plan as it does not satisfy Objective 13.5.2 (To ensure that Adequate Car Parking is provided in Suitable Locations to service Major Traffic Generating Nodes)”

1. The respondent (rightly on the evidence) did not seek to rely on its first reason for refusal at the hearing on the appeal.  It did however wish to examine the question of loss of on street parking as a consequence of the proposed development, the issue which appears to underlie the second reason for refusal.

1. The sticking point appears to continue to be concern about loss of on street car parking spaces.  Parking in Montville is limited especially during busy times; weekends and holidays. 

Conclave of Traffic Engineers

1. Traffic engineers retained by the three parties to the appeal met to discuss and if possible agree about traffic engineering matters.  They agreed:

Australian standard 2890.1 was the appropriate standard to be applied for sight distance criteria applying to the proposed access if the development the subject of the application were to proceed;

In accordance with AS 2890.1 the minimum sight distance required to the south by a driver exiting on the access was 45 metres and the desirable distance was 69 metres.  To achieve a distance of 45 metres meant the loss of 5 car parking spaces (including one space at the access).  To achieve a distance of 69 metres meant the loss of 7 car parking spaces.

1. However they differed on the number of on street car parking spaces that should be lost by sight distance requirements.  Mr Pekol (for the appellant) and Mr McClurg (for the State of Queensland) considered it was a maximum of four.  Mr Holland for the respondent considered it a minimum of 5 (including one space at the access).

The Evidence

1. The evidence consisted of town planning evidence by way of written reports and traffic engineering evidence by way of reports and oral evidence by the authors of those reports.  These were the engineers who took part in the conclave. 

1. When regard is had to the town planning evidence, Maroochy Plan 2000 and to the location of the site in the Montville Village Centre (Planning Area 19 Precinct Class Village Centre), it is readily apparent that the development proposed in the application is supported. Additionally, the scheme makes it clear that vehicle movements generated by the development should be addressed, either by parking provision on site or elsewhere nearby or by entry into an infrastructure agreement to provide money in lieu. Inevitably, when off street parking on site is required and provided, as here, access to the site requires clear sightlines for exiting traffic, resulting in potential loss to some extent of on street parking.

1. In the traffic engineering evidence, both Mr Pekol and Mr McClurg considered that it was appropriate to relax the strict application of AS 2890.1 requiring the loss of a minimum 5 on street car parking spaces.  They supported this view:

by taking into account traffic approaching the access from the south was travelling on an uphill grade, thus being able to reduce speed more rapidly.  AS 2890.1 made no apparent allowance for grade;

because AS 2890.1 for the minimum 45 metres clear sight line distance, provided for measurement to the centre of the road, whereas a vehicle travelling north would not be travelling in the centre of the road but in its lane.  They considered therefore, it was appropriate to measure clear sight line to the centre of the north bound traffic lane.

1. Mr Holland thought it erroneous to relax the minimum requirement of the standard in this way.  He acknowledged AS 2890.1 made no apparent allowance for grade.  However, the minimum and desirable distances in the standard were measured to the centre of the road and it should not be assumed that the distances set out did not take account of the fact that a vehicle travels in the centre of its lane and not the centre of the road.  The 45 metre distance was a minimum and here was the distance required for a north bound motor vehicle approaching the access to take appropriate avoiding action if necessary because of a motor vehicle leaving the site by the access.  The 69 metre distance was that which a driver leaving the site typically required to perceive it safe to turn right or north into the north bound traffic lane. 

1. I prefer Mr Holland’s approach.  Safety requires adequate clear sight lines for both a driver departing the site and for a driver approaching the access from the south.  The former if turning to the right, needs to be able to perceive there is adequate clear road to the south to permit a right turn to be safely made.  The latter may need to brake to avoid a vehicle emerging into the northbound lane.  The risk this may occur may be reduced if an exiting driver is provided with an appropriate clear sight line distance.  On the basis the appropriate standard is AS 2890.1, I am not persuaded that which the standard requires should be reduced.  I have not overlooked the Department of Main Roads indication that the removal of 3 on street car parking spaces excluding that lost for the access was probably sufficient for clear sight line distance in Montville Commercial Centre.  I consider however, the appropriate loss is 5 spaces; one for the access and four more to its immediate south. 

A recent proposal

1. The appellant has recently proposed a way to replace loss of on street car parking spaces.  It involves two angle parking areas, one immediately to the north of the site and the other a further 40 metres to the north of the site.  Both are on the same side of Main Street (eastern) as the site.   Both areas contain angle parking bays at 45 degrees to the direction of travel of a southbound motor vehicle.  One consists of 8 bays plus 2 disabled person parking bays and the other, 12 bays.  Conversion of the 8 bays and 12 bays to angle parking bays at 60 degrees to the direction of travel of a southbound motor vehicle and some acceptable revision of the width of the bays.  will yield an additional 6 car parking spaces.  

1. The Department of Main Roads is prepared to recommend approval of the application subject to conditions with the appellant either providing compensation for the loss of on street parking by a cash payment in lieu or provision of additional spaces nearby in lieu of those lost.  The Department does not object to the proposed conversion of the 45 degree angled parking bays, subject to the cost of the approved work being borne by the appellant.

Discussion   

1. Parking is at a premium in Montville, particularly on weekends or public holidays.

1. There was evidence a recent development abutting Main Street further to the north in Montville has angle parking provided in front of it at 60 degrees to the direction of travel of southbound traffic.  This may have been provided by the developer. 

1. Conversion of any existing parallel parking or of any 45 degree angle parking to 60 degree angle parking would plainly provide additional parking spaces.

1. On one view, the loss of 5 on street car parking spaces and the conversion of twenty 45 degree angled parking spaces to 60 degree angle parking spaces, obtaining thereby an extra six on street car parking spaces, still represents a net loss of 5 potential on street car parking spaces in Montville.

1. There was no evidence that the respondent or co-respondent had intended or intends to convert existing parallel parking spaces or 45 degree angle parking spaces to 60 degree angle car parking spaces in Montville. There was no evidence (apart from that referred to above) of the extent of areas in Montville (if any) where present parallel or 45 degree angle parking may be so converted. 

Decision

1. The appellant has established the appeal should be upheld.  The application is approved but will be conditioned.

1. Conditions must be relevant to but not an unreasonable imposition on a development or use of premises as a consequence of the development or must be reasonably required in respect of the development or use of premises as a consequence of the development.  Section 3.5.30 IPA.

1. Conversion of the two areas of 45 degree angle parking immediately to the north of the subject site will maintain the status quo for present on street car parking spaces in Montville and add one additional space.  An appropriate condition to attach to approval would be that the appellant pay for approved works involving line re-marking and provisions of appropriately sited front wheel stops to alter the two areas of angle car parking I have referred to, to provide 6 additional car parking spaces. 

1. In that event, a further condition will be that the appellant enter into an infrastructure agreement to make a contribution of money for the supply of public parking in Montville.  The amount of money should be that which represented the supply of two parking spaces at the rate applying at the time the appellant executed the no longer relevant infrastructure agreement referred to above.   

1. The appeal is adjourned to a date to be fixed to allow the parties to attend to the conditions to attach to the approval.